Monday, June 26, 2006
Seattle Post-Intelligencer / seattlepi.com
New state online gambling law raises doubts
Some legal experts say it’s too broad to hold up in court
By BLYTHE LAWRENCE AND TRACY JOHNSON
P-I REPORTERS
Weeks after a new state law about online gambling took effect, some legal experts are questioning whether it would hold up in court.
The new law echoes a federal law that already makes Internet gambling illegal and upped the crime to a felony.
But some First Amendment experts say it might be too broad and could leave people who own or operate Web sites risking prosecution for posting links to online casinos or even writing about Internet gambling.
Critics say the state must have a strong reason and a very specific law to limit free speech — even in cyberspace.
“Providing a hypertext link does not seem to aid and abet gambling,” said Michael Overing, a Los Angeles lawyer who specializes in the First Amendment. “Perhaps the law is overbroad in that respect.”
Kraig Baker, a Seattle attorney who focuses on Internet issues, said people “have pretty broad latitude” about what they can put on their Web sites. Typical exceptions are “fighting words,” obscenity and threats to national security.
“The basic rule is that there’s no liability for placing a link on a Web site,” he said. “Traditionally, there is great deference paid toward speech.”
The law, which took effect June 7, says anyone who “knowingly transmits or receives gambling information” using the Internet is guilty of a Class C felony punishable by up to five years in prison.
Rick Day, director of the Washington State Gambling Commission, said most people don’t need to worry. The state isn’t out to get gambling aficionados who blog about casinos or post tips on how to beat the dealer at blackjack, he said.
But he said links or references to online gambling conceivably could spell trouble for Web site owners.
“What you have to look at is whether that is a solicitation or inducement for people to engage in something that’s illegal.”
He said the state will deal with Web sites case by case and is more likely to go after big corporations that link to gambling sites than “a local entrepreneur.”
First-time offenders likely will get a cease-and-desist order pointing out the violation, he said; continued offenses might mean criminal charges.
He suggested that people who are unsure about putting gambling-related information on their Web site write to the commission and ask.
He took a harder line earlier this month when asked about Todd Boutte, a Bellingham man whose “Integrity Casino Guide” Web site linked to online casinos.
Boutte told The Bellingham Herald that he helped support his family by running the site and said he hoped he was safe, given that he didn’t make or take bets himself.
Day told the paper that people who simply link to gambling sites were risking prosecution.
“Any party involved could be guilty of a violation of state law,” he said. “If the site also has a link to a gambling site, then to us that’s no different.”
Boutte subsequently shut down his site. He couldn’t be reached for additional comment.
The issue has gained attention in recent weeks as people have blasted the new online gambling law.
“The answer to what’s legal and what isn’t changes every time you change the facts,” said Janelle Guthrie, spokeswoman for the state Attorney General’s Office. “We don’t believe these laws are vague, and if they were challenged as unconstitutional, we would defend them.”
David Skover, a professor of constitutional law at Seattle University, said he thinks the new law is valid because linking to a gambling site can be interpreted as a form of advertising.
“There is neither federal nor state constitutional protection for advertising for an illegal activity,” he said.
The state’s gambling laws don’t prohibit newspapers or other news media outlets from reporting on, or even linking to, illegal gambling sites but do prohibit advertising or otherwise promoting it, according to the Attorney General’s Office.
That provision puzzles University of Washington law professor Stewart Jay, who questions how ordinary citizens can be prosecuted for transmitting or receiving gambling information, as the law words it, while newspapers and television stations are exempt. “If the P-I puts it on the Internet, it’s legal. If Joe Blow puts it on the Internet, it’s illegal,” he said. “It’s a very crude distinction that’s being made here. When you discriminate between forms of speech and providers, the government has to provide a compelling reason.”
Jay said he thinks that part of the law is “very problematic” and could easily be challenged.
Some legal experts say the government can’t necessarily stop you from linking to otherwise illegal activities.
Baker, the Seattle attorney who focuses on the Internet, said you’re probably safe if you want to link to instructions for growing marijuana, for example. But there are limits. Your free-speech rights aren’t likely to protect you if you link to child pornography or directions to build an atomic bomb, he said.
State Sen. Margarita Prentice, D-Renton, who sponsored the Internet gambling bill, said the new law will discourage people from visiting illegal gambling sites — most of which are operated outside the United States.
“The point is, if it’s illegal, it’s illegal,” Prentice said. “We were defending our state, and we cannot have illegal gambling.”
P-I reporter Blythe Lawrence can be reached at 206-448-8312 or blythelawrence@seattlepi.com.
